International Criminal Law and “Reasonable Reliance”

by Kevin Jon Heller

As we all know, the ICC does not have jurisdiction over the acts of torture committed by the CIA at Guantanamo Bay — neither the US nor Cuba is a member of the Court. Nevertheless, it is worth noting that it would be far easier to prosecute the CIA interrogators at the ICC than in the US, because there is no defense of “reasonable reliance upon an official statement of law” in the Rome Statute. Kai Ambos:

Article 32 is similar to § 2.04 Model Penal Code (MPC) in that if focuses on the mental element as the determining factor of the relevance or irrelevance of a mistake. It is, however, narrower than the MPC’s provision since it recognizes a mistaken belief in the legality of one’s conduct only in the case of a superior order and not, as is the case in § 2.04 (3) MPC, in the case of ignorance of statute law or of acting in reasonable reliance upon official statements of the law.

Article 32, in other words, only recognizes mistakes of law that negate the mental element of a crime — a mistaken belief that conduct is legal does not qualify, in keeping with the principle ignorantia legis nihil excusat. Reliance on the OLC memos would thus be irrelevant in an ICC prosecution of a CIA interrogator: believing that conduct amounting to torture is legal because of an OLC statement would not negate the mental element of torture, which is simply the intent to inflict severe physical or mental pain or suffering or the awareness that such suffering will occur in the ordinary course of events.

Bill Schabas has pointed out that Article 12(3) of the Rome Statute would permit Cuba to accept the jurisdiction of the ICC on an ad hoc basis retroactive to 1 July 2002 — in which case the Court would have territorial jurisdiction over the CIA’s torture program. Maybe we should take advantage of the new rules concerning travel between the US and Cuba and talk to Raul Castro about Schabas’s idea…

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